This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed April 19, 2005
Kandiyohi County District Court
File No. K6-03-52
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Boyd A. Beccue, Kandiyohi County Attorney,
John M. Stuart, State Public Defender, Marie L.
Wolf, Assistant Public Defender,
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of and sentence for four counts of first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subd. 1(a) (2002). Because we conclude that appellant’s confrontation rights were satisfied under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), and because consecutive sentences imposed for multiple convictions and based on a judicial finding that the offenses are “crimes against persons” do not violate appellant’s Sixth Amendment rights under Blakely v. Washington, 124 S. Ct. 2531 (2004), we affirm.
Omar Yanez was convicted for sexually abusing his girlfriend’s daughter,
L.P. In January 2003, then nine-year-old
L.P. told her grandmother and other family members that Yanez had touched her
in her private area. L.P.’s grandmother
reported this allegation to law enforcement in
At trial, L.P. testified that (1) she told her aunt, her grandmother, and the social worker and deputy something about Yanez; (2) she did not remember what she had told them; (3) she told them the truth about what happened; and (4) she did not remember what Yanez did to her. Eventually, the state conceded that it had run out of options and that “[a]t this point it would appear that the child’s unavailable. She has no recollection. She doesn’t remember. She remembers that she told these people, that she had an interview and that she told the truth, and that’s it.” L.P. was subject to a short cross-examination that elicited no further details of the incident.
L.P.’s out-of-court statements to her grandmother and a friend and her videotaped statements to the social worker and deputy were admitted as substantive evidence. L.P.’s statements in the videotaped interview contained especially graphic descriptions of the abuse, and the videotape was played close to the beginning of the trial and again at the jury’s request during deliberations.
At trial, the district court dismissed 12 of the counts against Yanez. The jury found Yanez guilty of the remaining eight counts. On September 2, 2003, the district court adjudged Yanez guilty of and entered convictions on counts one through four, but not on counts five through eight. The first three counts were based on Minn. Stat. § 609.342, subd. 1(a) (2002), for digital penetration, and count four was based on the same statute but for oral penetration. Yanez was sentenced to concurrent 166-month sentences on counts one through three, and he was given a consecutive 144-month sentence on count four, for an aggregate sentence of 310 months. This appeal follows.
Yanez argues that L.P.
was unavailable for meaningful cross-examination and that admitting her
out-of-court statements violated his constitutional right to confront an
adverse witness under Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354 (2004). “Evidentiary rulings rest
within the sound discretion of the trial court and will not be reversed absent
a clear abuse of discretion. On appeal,
the appellant has the burden of establishing that the trial court abused its
discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (
“[I]f a case is pending
on direct review when a new rule of federal constitutional procedure is
announced, a criminal defendant is entitled to benefit from that new
rule.” O’Meara v. State, 679
N.W.2d 334, 336 (
In Crawford, the
United States Supreme Courtheld that out-of-court testimonial
statements are inadmissible unless the hearsay declarant is unavailable and the
defendant had a prior opportunity to cross-examine the declarant. 541
Appellant argues (1) that L.P. was unavailable to testify under Minn. R. Evid. 804(a)(3) because she testified to a lack of memory of the subject matter of her prior statement and (2) that Yanez’s right to confrontation was violated because L.P. was never subject to full and effective cross-examination.
This court has determined that “the Confrontation Clause guarantees only an opportunity for effective cross-examination” and that a witness’s lapses in memory do not deny a defendant his constitutional right to confrontation. Plantin, 682 N.W.2d at 659-60 (quotation omitted). Other jurisdictions as well have found that a witness’s inability to remember earlier statements or the events surrounding those statements does not implicate the Confrontation Clause. See, e.g., People v. Candelaria, 107 P.3d 1080, 1087 (Colo. Ct. App. 2004) (concluding that a witness’s inability to recall her earlier statements or the surrounding events does not alter the conclusion that the defendant’s confrontation rights were satisfied when the witness appeared at trial and was subject to cross-examination), cert. granted (Colo. Mar. 7, 2004); State v. Gorman, 854 A.2d 1164, 1177-78 (Me. 2004) (concluding that a witness is not constitutionally unavailable for purposes of the Confrontation Clause when the witness appears to testify and is impaired).
Here, L.P. appeared at trial and was cross-examined. We conclude that despite her memory lapses, L.P. was available and the admission of her out-of-court statements did not deny Yanez his right to confrontation. Therefore, we need not address whether L.P.’s statements to the witnesses were testimonial.
next argues that his consecutive sentences violate his Sixth Amendment rights
under Blakely v. Washington, 124 S. Ct. 2531 (2004), because the
district court in essence imposed an upward durational departure based on its
own findings. Blakely makes clear
that the greatest sentence that a judge can impose “is the maximum sentence
[that may be imposed] solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” 124
Minnesota Supreme Court determined that Blakely applies to upward
durational departures from the Minnesota Sentencing Guidelines. State v. Shattuck, 689 N.W.2d 785, 786
argues that the district court would not have imposed consecutive sentences had
it not made findings that his offenses were “more egregious than the typical
offense.” But because Yanez’s
convictions were for the sexual penetration of a child, the district court
exercised its discretion to execute two consecutive prison terms pursuant to
Minn. Sent. Guidelines II.F. Under the
sentencing guidelines, a consecutive sentence is permissive for “[m]ultiple
current felony convictions for crimes against persons.”
court recently held that Blakely does not apply to permissive
consecutive sentences when the offenses are “crimes against persons.” State v. Senske, 692 N.W.2d 743,